SARDAR MUHAMMAD ASLAM, J. - With the consent of the learned counsel for the parties, this case is admitted to regular hearing and is having disposed of as notice case. -
2. Through this petition the petitioners have. Prayed that .Circular No. 244/PA/AC(s), dated 25.2.2004 issued by respondent No. 1 imposing ban on transfers/transaction of Haqooq Shamlat in village MohraNoor, be declared to have been issued without lawful authority and of no consequence.
3. Report and parawise comments were called for from the respondents. The same were filed.
Respondent No. 1 stated that on receipt various complaints from land owners of village Mqhra Noor, that some of the influential, land owners had occupied land in excess to their shares in shamlat land to that detriment, he issued1 Circular No. 244/PA/AC(s), dated 25.2.2004 as an administrative measure just to safeguard the right of all the co-owners in shamlat land, lt was further stated that ban on transfer of shamlat is temporary measure ^nd will be lifted as soon as the on-going exercise of securing/safeguarding the public interest is Complete. The circular is re-produced below:- ln continuation of this office Circular No. 1060/PA/AC(s), dated 20.11.2003 and No/ 74/PA/AC(s), dated 19.1.2004 a thorough exercise has been conducted by the (Halqa Patwari under the Supervision of halqa Girdawar and concerned. Revenue Officer, ln this regard a detailed Goshwara of Haqooq, Shamlat and commensurate Mohra Noor has been prepared and perused by the undersigned, lt has been observed as per record that some of the possessions are in excess of the proprietary rights of the persons. Detail of which is given below:- Khastra No. 1939 measuring 4789 kanals, 127 marlas shamlat deh, different vendors/vendees have been established in possession as shareholders over a land measuring 4352 kanals, 10 marlas and remaining 439 kanals, 7 marlas as Maqbooza Malkaah Muhammad Hafeez son of Mehboob Khan and Muhammad' Maqsood son of Muhammad Ayub have been found in excess of their shares measuring 300 kanals and 458 kanals respectively whereas the Share-holders of 2700 kanals Haqooq shamlat are without possession as per record. Out of < 2700 kanals, 306 kanals and 1672 kanals are in the name of Central Government, National Credit Cooperative Housing Society and other share-holders respectively.
Moreover as per the detail prepared by Patwari Halqa few other Share-holders of Haqooq shamlaat have been found in possessions in excess of their proprietary rights. Possession of all such share-holders is ordered to be reviewed under section 172 of Land Revenue Act. Till the completion of this exercise no transfer/transaction of Haqooq ^hamlat in village Mohra Noor will take place. Patwari Halqa is directed to expedite the task and to observe the instructions in the circular.
4. Learned counsel for the petitioners contends that the circular in question is in utter disregard to the provisions of Article 73 of the Constitution, which enjoins that the owner of the property may possess and dispose of the same without any obstacle or obstruction on his part.
5. Conversely, the learned AAG, in opposition argued that Revenue Functionaries are preparing details of the share-holders of Haqooq Shamlat who are in possession in excess to their proprietary rights and the ban imposed on transfer will be lifted immediately, thereafter.
6. Heard. Record perused. The circular issued by the respondent Assistant Commissioner contains that possession of share-holders in excess of their rights is being reviewed under section 172 of the Land Revenue Act and till the process is completed no transfer/transaction of sale of share in shamlat will take place. Section 172 of the Land Revenue Act does not empower the respondents to impose ban on transfer of land by owners in shamlat. The vendee who desires to purchase the land can do so at his own risk.
Celebrated principle of land is that a vendee has to be vigilant and guard himself. Article 23 of the Constitution dealing with the property provides that every citizen shall have the right to acquire, hold and dispose of property in any part of Pakistan, subject to the Constitution and any reasonably restrictions imposed by law in the public interest. Lt speaks of not only of restriction by law but the same is to be tested on the touch stone of its reasonableness. Order of the respondents is not backed by law.
7. The petitioners have a right of proprietorship in the land situated in village Mohra Noor. Restraint imposed on alienation of land is opposed to the Constitutional provisions, lt is an abridgement on their rights, ln the absence of law, no restriction can be imposed. The circular issued by the respondent is thus not sustainable.
8. For what has been discussed above, this petition is allowed and Circular No. 244/PA/AC(s), dated25.2.2004 is declared to be without lawful authority and of no legal, consequence.